On December 24, 2020, a Trial Panel of the Special Department of the Basic Court of Prishtinë/Priština (presided over by Judge Albina Shabani-Rama[1]) found Nenad Arsić, a Serb from Çagllavicë/Čaglavica, guilty of two counts of War Crimes against the Civilian Population[2] and sentenced him to a term of imprisonment of six (6) years. The decision of the Court was announced after the main trial had been held in the case The Prosecutor v. Nenad Arsić as per the Indictment of the Office of the Special Prosecutor of Kosovo - SPRK (KTS. No. 01/2016 dated December 6, 2019).
In a brief reasoning of their decision, the Trial Panel stated that the basis for the decision was the evidence presented during the main trial, and added that, in their testimonies, the injured parties-witnesses identified the Defendant as a person who, during the armed conflict, in concert with other unidentified persons, on May 21, 1999 had been present on their property in Emshir/Emšir, Prishtinë/Priština, that he had participated, in co-perpetration with others, in the destruction and confiscation of their property, when severe bodily injuries had been inflicted on the witnesses. The Defendant's actions contained all the elements of the criminal offence of War Crimes against the Civilian Population. When sentencing, the Court took into account both mitigating and aggravating circumstances provided for in Article 41 of the SFRY Criminal Code.
During the main trial, the Defendant was placed in detention on remand which was ordered against him after he had been apprehended, on October 22, 2019, and which was being extended until the judgment became final.
The Humanitarian Law Centre Kosovo (HLCK) regularly monitored the trial against the Defendant Arsić, which was opened on June 22, 2020. Based on the monitoring of the trial and the analysis of publicly available court documents in this case, the HLCK finds that the injured parties-witnesses, in their testimonies given during the main trial, confirmed the presence of the Defendant Arsić on the critical day at the scene where the charged criminal offences had been committed. They also confirmed that, on that occasion, the Defendant had been hitting them with hard objects, as well as that he had participated with other unknown persons in the destruction of the property of the injured parties, as well as in the confiscation of their money and valuables.
The HLCK also notes that it is very likely that the passage of time from the moment of the commission of the criminal offence the Defendant was found guilty of to the trial, i.e. the announcement of the Court's decision, caused certain discrepancies in the witnesses' statements about this event given during the previous stages of the proceedings. For the time being, however, the HLCK does not want to comment on the faith given by the first instance court and how it assessed the relevance of the discrepancies in the witnesses' observations of what had happened on the critical day. The HLCK will be able to comment on this only after reviewing and analysing the first instance judgment, when an assessment will be given of whether the sentence imposed is adequate.
Moreover, the fact that the Court imposed an aggregate sentence on the Defendant, without individual sentencing according to the actions for which he was charged with, will be the subject of analysis within the comprehensive report the HLCK is compiling for the most important trials in 2020.
In the Indictment dated December 6, 2019, the SPRK charged the Defendant Nenad Arsić with the commission of the criminal offence of War Crimes against the Civilian Population on two counts:
- that, during the armed conflict in Kosovo, on May 21, 1999, at around 8:00 AM, in Prishtinë/Priština, Emshir/Emšir, as a member of the Serbian police reserve forces, being uniformed and armed, in complicity with other unidentified members of the police, he had come to the property of the Shala family in police vehicles, and that, in order to violate their bodily integrity and physical and mental health, he had been hitting Jakup and Skender Shala with wooden objects and sticks for a long time, causing them great suffering and severe bodily harm. The Shala brothers still feel the consequences of beatings and harassment. According to the indictment, by doing so, he had committed the criminal offence of War Crime against the Civilian Population.
-that, on the same day, at the same time, in the above-mentioned place, in the same capacity, the Defendant had knowingly participated in the mass destruction and illegal appropriation of property that had not been justified by military needs. He had taken part in the search of the family houses of the four Shala brothers, during which furniture and other valuables had been damaged. In addition, auxiliary facilities were demolished, i.e. a farm owned by Jakup Shala from where 3,200 liters of oil packed in barrels were seized as well as 160,000 DM hidden in the yard of Sheriff Shala and 80,000 DM hidden in a chicken coop located in the yard of Isak Shala's house. On the critical day, the following had been seized from the garages and yards of the Shala family: a Renault Espase, a motor cultivator and a tractor, all owned by Jakup Shala; a Volkswagen Jetta owned by Enver Shala; an Opel Vectra owned by Hakif Bajrami; a Jugo Corral 55 owned by Vahid Halili and a Mercedes MB 100 owned by Skender Shala. According to the indictment, by doing so, he had committed the criminal offence of War Crimes against the Civilian Population.
Following the indictment assessment procedure, as prescribed by the law, the main trial was opened on June 22, 2020 before the Basic Court of Prishtinë/Priština in the course of which the Trial Panel was in session for eleven (11) days. The trial was opened by reading the indictment to which the Defendant pleaded not guilty. Nine (9) witnesses proposed by the Prosecution and three (3) witnesses proposed by the Defendant and his Defence were heard before the Trial Panel. The Defendant testified before the Trial Panel. During the trial, material evidence proposed by the parties to the proceedings was presented, after which Prosecutor Drita Hajdari amended the enacting clause of the indictment in relation to the legal classification of the criminal offence the Defendant was charged with. The parties to the proceedings presented their closing statements.
Pursuant to the decision of the Kosovo Judicial Council dated May 29, 2020, in order to prevent the spread of the COVID-19 pandemic, the main trial was open to monitors and the media, but not to the public.
[1] Members of the Trial Panel: Judges Shadije Gërguri and Arben Hoti.
[2] Provided for and punishable by Article 142, as read with Article 22 of the CCSSRY, also punishable as a war crime in violation of the Geneva Convention under Article 144, Paragraph 2, items 2.2, 2.3 as read with item 1, sub-item 1.2 in conjunction with Article 31 of the CCRK (2019).
